Unfair Dismissal

Deciding whether a Dismissal is Fair

If your employment has been terminated by your employer and you believe your employer acted unfairly in ending your employment you may be able to make a claim for unfair dismissal.  In order to make a complaint to an employment tribunal alleging unfair dismissal then you will normally need to have at least one year of qualifying employment.

If your employer intends to argue the dismissal was fair he will need to pass two stages.  He will first need to show a fair reason for the dismissal.  The employer will then need to demonstrate the dismissal was reasonable.

Stage 1: A Fair Reason

For a reason to be fair it must be within of the following:

  • Capability
  • Conduct
  • Redundancy
  • Retirement
  • A Statutory Bar
  • Other Substantial Reason

Stage 2: Reasonableness

The next hurdle the employer will need to pass in order to show the dismissal was fair.  When deciding whether a dismissal was fair the following points should be considered:

  • Proper Procedure
  • Appropriateness – was dismissal an appropriate sanction
  • Consistency
  • Mitigating Factors
  • Band of Reasonable Responses – would a reasonable employer have dismissed

Automatically Unfair Dismissals

Some dismissals are not subject to the two stage test because they are automatically deemed unfair once the reason has been established.  They include:

  • Trade union membership or non membership
  • Trade union activity
  • Pregnancy or childbirth
  • Assertion of statutory rights
  • Redundancy when selection is made on one of the above grounds
  • Whistle blowing

Unfair Dismissal Remedies

  • Reinstatement and reengagement orders.  (This is a possible outcome if a claim is successful but compensation is the typical outcome
  • Compromise Agreement
  • Compensation – basic award, compensatory award, or additional award

Basic Award

This is the same as the statutory redundancy payment.  It depends on the age of the claimant.

Age range

No. of weeks gross pay per year of employment

Under 22

0.5

22 – 41

1

Over 41

1.5

The maximum number of years is twenty and the maximum award from 1st February 2009 is £10,500.  This is reviewed annually and normally increased from 1st February.

Compensatory Award

This is in addition to, not instead of, the basic award.  The amount depends on the actual and predicted loss.  The claimant must minimise their losses.  The maximum award from 1st February 2009 is £66,200.

  • Where a party has shown an unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures the tribunal has the power to increase or decrease the compensation awarded by 25%.